MPR v Refugee Status Appeals Authority - [2012] NZHC 567

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH S 51
OF THE IMMIGRATION ACT 2009.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006163 [2012] NZHC 567

UNDER the Judicature Amendment Act 1972

AND

UNDER the Immigration Act 1987

IN THE MATTER OF the New Zealand Bill of Rights Act 1990

AND

IN THE MATTER OF the 1951 Convention relating to the Status of Refugees, and its 1967 Protocol

BETWEEN M P R Plaintiff

ANDREFUGEE STATUS APPEALS AUTHORITY
First Defendant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
Second Defendant

Hearing: 15 July 2011

Counsel: C S Henry for the Plaintiff
No Appearance of or for the First Defendant
A R Longdill for the Second Defendant

Judgment: 28 March 2012

JUDGMENT OF DUFFY J

R v REFUGEE STATUS APPEALS AUTHORITY and ANOR HC AK CIV-2010-404-006163 [28 March 2012]

This judgment was delivered by Justice Duffy on 28 March 2012 at 3.45 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: C S Henry P O Box 616 Orewa 0946 for the Plaintiff

Solicitors: Meredith Connell P O Box 2213 Shortland Street (DX CP24063) Auckland 1140 for the Second Defendant

Copy To: Immigration and Protection Tribunal (formerly the Refugee Status Appeals
Authority) P O Box 90251 Victoria Street West Auckland 1142

[1] The plaintiff, Mr R, claims that he is entitled to be recognised as a refugee. His claims have been rejected so far. He now brings judicial review proceedings challenging the way in which the earlier decisions were reached.

[2] The proceedings are opposed. The second defendant, the Attorney-General, is the only defendant actively opposing Mr R’s claims. The Authority, the first defendant, has properly given notice that it abides the Court’s decision.

Background

[3] Mr R arrived in New Zealand on 10 August 2003, intending to marry his fiancée. He experienced a series of failed attempts to gain refugee status from
20 August 2004 to 17 July 2008. On 27 November 2008, a Refugee Status Officer declined his second claim for refugee status. On 2 December 2008, Mr R lodged an appeal against this decision with the Refugee Status Appeals Authority (“the Authority”). On 17 June 2010, the Authority dismissed this appeal; hence, these proceedings.

[4] Mr R’s refugee claim is based on:

(a) His apostasy from Islam to Christianity;

(b)His participation in a protest outside the Auckland Central Remand Prison on 1 September 2007 and the broadcasting of that protest, which led to the detention and interrogation of his father in Iran;

(c) His participation in the 2009 post-election protests broadcast on

YouTube; and

(d) His profile as a politically active Kurd. [5] The Authority concluded that:

(a) None of the risk factors relied on, considered separately or cumulatively, result in Mr R having a well-founded fear of being persecuted in Iran;

(b)In light of the above conclusion, it is unnecessary to consider whether Mr R’s fear of persecution was based on a “Convention ground”; and, therefore

(c) Mr R is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 567
Decision Date: 28 March 2012

CaseChat Overview and Summary

In MPR v Refugee Status Appeals Authority, the plaintiff, Mr R, sought judicial review of the Refugee Status Appeals Authority's decision to deny his refugee status. The Authority had concluded that Mr R did not have a well-founded fear of persecution in Iran, based on his apostasy from Islam, his participation in protests, and his political activism as a Kurd. Mr R argued that the Authority made an error of law by not considering why he would need to worship covertly in Iran, and that its decision was unreasonable. The Attorney-General opposed the application, arguing that the Authority's approach was legally sound. The Court found that the Authority had indeed erred in law by not considering why Mr R would need to worship covertly, and that its failure to do so led to an unreasonable decision. The Court held that the Authority must consider whether an applicant's covert behaviour is due to a fear of persecution, and that until this question is asked, it cannot be sure whether the absence of overt demonstration of faith is due to fear of persecution. The Authority's failure to ask this question meant that it had erred in law and reached an unreasonable decision. The application for judicial review was successful, the Authority's decision was set aside, and the application for refugee status was referred back to the Authority for reconsideration.

Orders